Marijuana use among adults ages 19 to 50 reached an all-time high in 2022, according to the National Institutes of Health. Approximately 44% of adults ages 19 to 30 and 28% of adults ages 35 to 50 reported using marijuana in any form.

Given statistics like these, it’s likely some portion of your workforce uses marijuana, either recreationally or medicinally. Thus, it’s important to understand your legal rights to enforce drug-use policies, ensure a healthy and safe work environment, and balance your company obligations with the rights of your employees.

The state of marijuana laws

Though the use of marijuana is illegal at the federal level, it has either been legalized or decriminalized in most states. As of December 2023:

  • Federally, the use of marijuana in either a medicinal or recreational capacity is still illegal. The federal government regulates the use of drugs through the Controlled Substances Act (CSA). The CSA does not differentiate between medicinal and recreational use.
  • Only four states (Idaho, Wyoming, Kansas and South Carolina) have not legalized marijuana in any form, whether for recreational or medicinal use.
  • Twenty-four states, Guam, and the District of Columbia have fully legalized marijuana, even though it’s still banned under federal law. The states are Alaska, Arizona, California, Colorado, Connecticut, Delaware, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nevada, New Jersey, New Mexico, New York, Ohio, Oregon, Rhode Island, Vermont, Virginia and Washington.
  • Twenty-two states allow the use of marijuana in at least some capacity, or have fully or partially decriminalized it: Alabama, Arkansas, Florida, Georgia, Hawaii, Indiana, Iowa, Kentucky, Louisiana, Mississippi, Nebraska, New Hampshire, North Carolina, North Dakota, Oklahoma, Pennsylvania, South Dakota, Tennessee, Texas, Utah, West Virginia and Wisconsin.

Safety at work

You have a duty under the Occupational Safety and Health Act to maintain a safe and healthy work environment. If someone is impaired by the use of cannabis while working and cannot safely perform their duties, they could be putting themselves and potentially others at risk. You are required to address such situations.

This starts with crafting a comprehensive drug use policy and evenhandedly applying and enforcing it. Safety-sensitive industries are likely to have zero tolerance policies, according to the National Safety Council, but even zero-tolerance companies need to be careful when applying anti-marijuana use policies.

In some instances, marijuana may be prescribed to treat a medical condition with authorized use under state law. If the employee can still safely perform their duties, you may be required to provide an accommodation under state law.

Privacy rights and drug screening practices

You should consider whether a workplace drug-testing policy infringes on employees’ legal right to use marijuana when they aren’t working. For instance, disciplining or terminating an employee for consuming cannabis while off the clock could land you in hot water in states where recreational marijuana is legal. (If you have federal contracts, you may still be required to screen applicants for drug use and automatically disqualify those with positive results.)

When crafting a drug screening and use policy to meet state compliance requirements, consider these questions:

  • Does the applicable state law limit your ability to perform a pre-hire or employment screening for marijuana?
  • Is your ability to enforce a drug use policy limited under a state privacy act (assuming it’s lawful to possess and consume marijuana in your state)?
  • Does the applicable state law limit the use of cannabidiol (CBD), tetrahydrocannabinol (THC) or other products with low THC levels? (THC is the substance in cannabis that provides a “high.”)
  • Do you need to make reasonable accommodations due to medical marijuana use under state law? If so, do you know what’s considered reasonable under applicable law?
  • If you have a multijurisdictional workplace, how will your drug testing policy account for the various laws at play? Will you enact separate drug screening and use policies across various states?
  • How will you respond if an employee appears to be impaired on the job? (This includes any testing you may want to administer as well as discipline if the employee tests positive.)

Understandably, these can be complex issues to navigate. As a best practice, consult with a licensed labor and employment attorney in your local jurisdiction about your rights and obligations.

When reasonable suspicion arises

In light of state decriminalization trends, a good approach is to think about marijuana use as you would think of alcohol use in your workplace. Your workplace is not likely to ban an employee from drinking when they are not on your premises, on call or working.

If you have a reasonable suspicion that someone is impaired on the job, follow your company’s established procedures for documenting the incident. For instance, a comprehensive process may include steps such as these:

  • Document the concern. Who raised a complaint about the person’s behavior? Was it a coworker, a manager or someone else? What did they say they observed?
  • Approach the employee to evaluate the situation for yourself. Consider whether the employee appears to be disoriented or experiencing blurred vision, dizziness, slurred speech, or other symptoms that may indicate they are under the influence of drugs or alcohol.
  • Have another member of management evaluate the employee to confirm your observations. Document their findings as well as your own. If you don’t believe reasonable suspicion exists based on both managers’ findings, end the process.
  • If the managers have corroborated reasonable suspicion of impairment, immediately remove the employee from any safety-sensitive work environment and ask them to wait in an area that is not safety-sensitive.
  • Explain to the employee that they will need to consent to undergo a drug test to rule out a drug policy violation. Refusal to consent could be grounds for discipline or termination, depending on how your drug testing policy is worded and assuming the employee has received a copy of the policy.
  • Keep the employee out of work until the test results are in, if your policy allows.
  • If the test comes back negative, return the employee to their position as soon as practicable. If it’s positive, consider progressive discipline or automatic termination  pursuant to your policy.
  • Communicate with the worker about your employee assistance program (EAP), if applicable.
  • Have the employee sign a last chance agreement (LCA), if applicable. An LCA may include provisions like:
    • The employee agrees to participate in the EAP.
    • The employee understands they will be subject to an unpaid suspension (of X days) for violating your drug use policy.
    • The employee agrees to take follow-up drug tests at random or scheduled intervals for a specified duration of time.
    • The employee understands that failure to adhere to LCA terms will result in immediate termination.

As always, consult with an experienced labor attorney or HR compliance professional before implementing or editing your drug screening and use policy.

With many companies experiencing labor shortages, consider whether a positive test result should disqualify someone from work or result in grounds for termination. Again, this requires balancing your duty to address workplace hazards with the legalization of marijuana. Seek counsel before taking disciplinary action against an employee for marijuana use.